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MEMO/10/23

Brussels, 29 January 2010

ASEM joint customs operation “Diabolo II”

What is a “joint customs operation”?

Joint customs operations are carried out with the overall objective of encouraging the effectiveness of operational cooperation between Member States and third countries in combating infringements of Community and/or national customs provisions.

Joint customs operations aim at placing shipments under surveillance for a limited period of time in order to detect sensitive, prohibited goods, such as narcotics, psychotropic substances, precursor chemicals, firearms, weapons of mass destruction or disruption, counterfeit articles, currency movements and goods which pose health threats or high-taxed goods and taking appropriate operational measures to prevent any fraud. A common set of criteria is generally used for the assessment of the threat and the definition of risk profiles: the nature of the goods, the means of transport and the route followed (point of departure, point of transhipment, point of arrival).

What is ASEM?

The Asia–Europe Meeting (ASEM) is an informal process of dialogue and cooperation initiated in 1996 between Asia and Europe. The ASEM dialogue addresses political, economic and cultural issues, with the objective of strengthening the relationship between the two regions, in a spirit of mutual respect and equal partnership. Customs cooperation is part of inter-governmental discussions. The twenty-seven EU Member States, sixteen Asian countries (Brunei, Burma/Myanmar, China, Cambodia, India, Indonesia, Japan, Laos, Malaysia Mongolia, Pakistan, the Philippines, Singapore, Republic of Korea, Thailand, and Vietnam), the European Commission (EC) and the ASEAN secretariat participate in this forum.

Who decided to organise Diabolo II?

Following the decision of the ASEM customs director generals/commissioners at their seventh meeting in Yokohama, Japan, in November 2007 ASEM customs agreed to implement joint operations, such as Diabolo II, coordinated by the European Commission. The ASEM working group on customs matters invited the European Commission (OLAF) to organize and coordinate joint customs operation "Diabolo II".

Who participated?

All 27 EU Member States and 13 Asian countries (Burma/Myanmar, Cambodia, Indonesia, Japan, Laos, Malaysia Mongolia, Pakistan, the Philippines, Singapore, Republic of Korea , Thailand, and Vietnam) participated. India was not in a position to participate in the operation.due to technical reasons. The Chinese authorities did not participate in Diabolo II since they were of the opinion that IPR cooperation between China and European Commission should be conducted under the framework of the China–EC action plan on IPR cooperation. Due to a national outbreak of influenza A (H1N1) virus, the authority of Brunei informed OLAF that it would not be possible to attend the meeting and training in Malaysia and therefore was not in a position to cooperate in the operation. The operation was supported by Interpol and Europol .

The D irectorate-General for Taxation and Customs Union (DG TAXUD), as coordinator of the ASEM customs forum, gave every necessary support. The European Anti-Fraud Office (OLAF) acted as coordinator for Diabolo II. The operational phase was coordinated by the "Permanent Technical Infrastructure supporting Joint Customs Operations" (POCU) that was set up in the OLAF premises in Brussels. As coordinator, OLAF assumed responsibility for the relevant business plan based on a threat assessment with targeted ports of departure, routes and entry points into the EU, as well as transhipment routes and risk indicators, making use of additional information available on container shipping lines, consignees, consignors.

What was the objective of Operation Diabolo II?

This joint customs operation was a maritime operation that focused on containers shipped from Asian ASEM ports of loading to EU ports of discharge. The operation focused mainly on counterfeit cigarettes, but the possibility that other counterfeit goods or sensitive goods could be retained or seized by the EU Member States was also incorporated.

What is the basis for the exchange of information between the ASEM partners?

All ASEM partners were invited to participate in Diabolo II and the ASEM customs director generals/commissioners agreed with the operation. Participation was on a voluntary basis and the operation was limited in time and scope. Every participating partner took all necessary measures on an ad hoc basis, in conformity with national law and international agreements if applicable, ensuring the transmission of intelligence for the sole purpose of the objectives of Diabolo II, guaranteeing confidentiality of the information.

What is the EU legal framework?

The legal framework of the fight against counterfeiting has been modified after the entry into force on 1 of July 2004 of Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights. This regulation presents the various ways of intervention for customs on behalf of right-holders when goods are suspected of infringement on some intellectual property rights. DG TAXUD continues to be responsible for legislation relating to the control of counterfeit goods at the external borders of the EU 1 .

Council Regulation (EC) No 515/97 of March 1997, modified by Commission Regulation (EC) No 766/2008 related to mutual assistance between the administrative authorities of the Member States and the cooperation between them and the Commission in order to ensure the good application of the customs and agricultural regulations (OJ L82-22.03.1997), provides the legal basis for specific activities of the Member States and the Commission, such as the special watch of goods, means of transport, warehouses and persons, including in the area of the fight against counterfeit goods.

Consecutively to the actions carried out on basis of the Community law, the convention on mutual assistance and cooperation between customs administrations, the "Naples II Convention", was signed in Brussels on 18.12.1997 (OJ n° C 24, 23.1.1998, p.1 and C 165, 30.5.1998, p.24) provides also the possibility to assure appropriate follow-up action in conjunction with the law enforcement authorities for specific forms of cooperation, namely hot pursuit, cross-border surveillance, controlled delivery, covert investigations and joint special investigation teams.

How did the European Commission (OLAF) prepare this operation?

In the perspective of the operation, the European Commission (OLAF) organized a conference in the ASEM context in the framework of mutual assistance in customs matters in Singapore on 30th and 31st of March 2009. Objective was to make an evaluation of the joint customs operation (JCO) with the code name Diabolo 1, identify the shortcomings and explore the possibility of conducting a similar operation combating smuggling of counterfeit cigarettes by means of back-tracking and/or monitoring suspicious consignments.

The conference drafted a provisional business case that was presented in the framework of the 3rd ASEM Working Group on Customs Matters organized on 28th and 29th of April 2009 in Budapest (Hungary). The ASEM meeting adopted the business case including the comments made by the EU Member States and Asian ASEM partners and the international/regional organizations.

Briefing meetings and training were organized in Kuala Lumpur (Malaysia) from the 17th through the 20th of August 2009. The objective of the meetings was to explain, discuss and get commitment to the operational plan that was distributed on beforehand and contain all details on the operational acitivities to be carried out.

How was information between the partners exchanged?

As exchanging information between the ASEM partners required secure connections, the anti fraud information system (AFIS), in particular the virtual operational coordination unit (V-OCU), developed and deployed by the European Commission (OLAF), was used for this operation. For the first time AFIS (V-OCU) was successfully used as the only communication tool for a JCO that involved EU Member States as well as third countries.

What is Permanent Operational Coordination Unit (POCU)?

In order to provide logistical support to the Member States and to operate as cost efficient as possible OLAF has created a Permanent Operational Coordination Unit (POCU) in its premises in Brussels. The POCU is maintained and equipped by OLAF in order to host the liaison officers, to coordinate the JCO to its fullest extend and to maintain direct contacts with the national contact points (NCPs).

What is the role of the liaison officers (LO) in the POCU?

During the operational phase of Diabolo II liaison officers (LOs) of 11 EU Member States representing all 27 EU Member States were present in the POCU. Also a Europol LO was present.

What are national contact points and what is their role?

In every participating country (EU and ASEM) a national contact point (NCP) was appointed. The national contact points were responsible for in the flow of information, processing requests for information timely and properly, introducing selected containers in the V-OCU, organizing checks and controls on selected containers, checking data against national information systems, collecting information extracted from national information systems and introducing details in the V-OCU that were related to seizures which are detected during the operation.

What categories of goods were seized?

Category

Items

Tobacco

Cigarettes and other tobacco products

Textiles

Caps, hats, gloves, bags

Footwear

Sports shoes, sandals, shoes

Electronics

Head phones, digital cameras

Miscellaneous

Toys, tennis rackets, puzzles, wallets, clippers, picture frames, labels

What happened to the goods seized?

The national authorities dealt with the seized goods in line with their national legislation. On the basis of a definitive judgement qualifying the goods retained counterfeit they were in principle destroyed. Some products are burned (cigarettes) and other products (e.g. sport shoes) can be recycled (e.g. in synthetic football fields).

What sanctions/fines will the companies and individuals caught face?

The natural and physical persons involved in the trafficking of the goods are the main target of this kind of operations. Without prejudice to the retention or the seizure of the counterfeit goods detected, the sanctions are fixed on the basis of the respective national legislation.

Provisional results of this operation targeting counterfeit cigarettes from Asia identified a clear link between the illicit traffic of cigarettes and organized crime, in particular related to money laundering.

What amount of duties can be recovered thanks to Diabolo?

The joint operation has prevented losses to public budgets; and therefore no recoveries have to be made. In seizures of counterfeit cigarettes alone, this operation forestalled potential losses to the budgets of the European Community and its Member States (customs duties and taxes) of approximately EUR 10 million.

What was the role of Interpol and Europol?

Interpol and Europol participated as observers in this operation in the framework of the protection of the Intellectual Property Rights (IPR). The names of individuals and companies appearing in the operation were cross-checked against Europol systems and the Interpol databases.

For the first time a representative of Europol was present in the POCU during the operational phase of a JCO. Via a secured internet connection it was possible to make direct crosschecks of individuals and companies. A French liaison officer at the OCU acted as an intermediate between Europol and the EU partners.

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